Contempt: Sword or shield?

The contempt of court conviction, along with disqualification, of (former) Senator Nihal Hashmi, coupled with issuance of contempt notices to Daniyal Aziz and Talal Chaudhary, have sent shock waves throughout PML(N)’s team of spin doctors. At the very least, it has stunned a group of Sharif family loyalists, who had planned their political assent around the idea of gaining favour with the King (and her daughter) by consistently berating the honourable Court and its judges.

As a result, over the past few days, a fresh debate has erupted within the politico-legal circles of Pakistan: what are the precise contours of contempt law, and when (if at all) should such measures be adopted by the courts? Does contempt law have the effect of chilling legitimate speech? Specifically, what is the line between criticising a judgment, as opposed to criticizing the judge? Should democratic freedoms entail the right to criticize a judge? In any case, should courts be (hyper)sensitive in contempt matters, or is restraint the recommended course of action? Also, as articulated by Maryam Nawaz in her recent address in Gujranwala, if ‘contempt of court’ entails a punishment, should ‘contempt of the vote/parliament’ (whatever that is) also have penal consequences?

These questions require rigorous debated by judicious minds. But before turning to them, it is pertinent to briefly review SC’s order in Nihal Hashmi’s case.

By way of background, on 28th May, 2017, Nihal Hashmi delivered a speech in Karachi, where he (incontrovertibly) threatened all those who were investigating the Sharif family. Specifially, Mr. Hashmi claimed that he (and other Sharif family loyalists) will “shrink the earth” for such individuals (and their families), making it impossible for them to live in Pakistan.

In response to this speech, the honourable Supreme Court issued contempt notice to Mr. Hashmi, who appeared before the court, but did not tender an unconditional apology at the first instance. After hearing the matter in some detail, a three-member bench of the honourable Court convicted Mr. Hashmi “under Section 3 of the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) read with Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973” and sentenced him “to simple imprisonment for one month and a fine of Rs50,000 (Rupees fifty thousand only)”. Furthermore, the honourable Court’s order observed that this conviction, “ipso facto”, disqualifies Mr. Hashmi by virtue of Article 63(1)(g) of the Constitution, from being elected of chosen as member of the Parliament, for a period of five years.

Importantly, while passing this order, the honourable Court observed the fact that, in usual circumstances, the courts forgive an alleged contemnor, so long as such contemnor tenders an unconditional and heartfelt apology, at the first available opportunity. However, Mr. Hashmi did no such thing, and tendered a belated apology, after about seven months of commencement of proceedings, and after the prosecution had already completed its evidence. In the circumstances, the honourable Court observed that Mr. Hashmi’s apology was an “afterthought”, which could not be accepted. However, this late apology, coupled with the fact that Mr. Hashmi “is about sixty years of age”, and has been “an advocate for the last about thirty years”, warranted that he not be sentenced to the maximum extent (of six-month imprisonment).

In the aftermath of this judgment, no sooner was Mr. Hashmir brought to jail that he developed a coronary condition (as is customary for all high-profile individuals these days), and has since been serving his sentence in the hospital.

Speaking of coronary conditions, a few more individuals (including Talal Chaudhary and Daniyal Aziz) are probably lining-up doctors to get their medical check-up done, ever since the honourable Court has served them contempt notices for their respective tirades against the Court. By comparing the judges to idols in Kaa’ba, who need to be thrown out by Nawaz Sharif (who, in this analogy, is being compared to the Prophet (SAWW), God forbid), Talal Chaudhary had really outdone himself in the court of his King. Will he have the moral courage to stand by this statement, when summoned by the idols, is yet to be seen.

Back to the idea of contempt , and its use by our honourable Courts: let us pause to recognize that freedom of speech and expression, under the Constitution of Pakistan, is protected, as a fundamental right, under Article 19 of the Constitution. However, much like other constitutional democracies, the right to freedom of speech in Pakistan is not unfettered, and is subject to limitations that include, inter alia, contempt of court. Correspondingly, Article 204 of the Constitution grants inherent powers to the court to punish contemnors who, inter alia, “scandalize” the court, or bring a judge “into hatred, ridicule or contempt”.

The people of Pakistan (and their elected representatives) have drafted the Constitution in a manner that only empowers the Courts, and not the Parliament, to issue contempt notices. If Maryam Safdar has trouble with this idea, she should lodge a complaint with her father, who has served in the Parliament for almost three decades, without once reconsidering this constitutional framework.
The ideal behind sacrificing freedom of speech, at the altar of contempt , finds justification in two disparate but connected ideas: 1) scandalizing or ridiculing a judge, especially casting doubts upon his or her integrity, erodes the confidence of litigants, and the public in general, in our seat of justice; and 2) a judge (any judge) by virtue of limitations place by the ‘Judicial Code of Conduct’, is unable to publicly respond to personal allegations, and thus needs protection in the “marketplace of ideas”. As a result, the judges are entrusted with the power of contempt to protect the esteem of the Court, as well as the integrity of their person.

Despite this legal and moral justification, the power of contempt is susceptible to abuse. And there have been examples, in the not distant past, when the Chaudhary Court used contempt as a means of silencing dissent. There can no cavil with the proposition that contempt cannot be used as a sword to extinguish dissent. Instead, it must always, and as a last resort, be used to protect the integrity and impartiality of our judicial system. So the question is: has the honorable Court used contempt , in the instant cases, to silence dissent? Or this power been used, as a last resort, to ensure that partisan passions are not used to erode public confidence in the seat of justice? A dispassionate answer to this question – by anyone other than Maryam Safdar and her cohorts – will inevitably favor the embattled court and its judges.

These are troubled times for our politics, as well as for the judiciary. And, in the past, any confrontation between the politics and the judiciary has resulted in a mutilation of our constitution and the laws. Despite partisan preferences, must resist such temptations. We must learn to see beyond immediate political goals, and remain steadfast in defense of our Constitutional limitations. Only in this manner will our constitutional democracy gain the strength to survive transient political crisis.

Post-script: Maryam Safdar is mistaken if she thinks that, after Nihal Hashmi’s conviction, people will continue risking disqualifications through contempt . Those who are loyal to her for immediate political gain (and ministerial portfolios) are about as reliable as the wind. She would be wise to recall that, until recently, such individuals were dancing to the tune of Pervaiz Elahi and General Musharraf, with just as much as zeal and conviction.